Pleural Plaques (House of Lords Ruling)
The final item of business today is a members' business debate on motion S3M-655, in the name of Stuart McMillan, on the House of Lords ruling on pleural plaques. The debate will be concluded without any questions being put.
Motion debated,
That the Parliament expresses its concern over the House of Lords ruling against compensation claims for the people suffering from the pleural plaques condition which is a scarring of the lungs caused by exposure to asbestos; notes that this rejection now closes the door to further compensation claims, despite the High Court ruling in February 2005 that anyone suffering from pleural plaques should receive compensation; recognises the work of Clydeside Action on Asbestos for the campaigning work it has undertaken, and notes that a draft bill seeking a Scottish solution will be sent to the Cabinet Secretary for Justice.
I bring the debate to the Parliament with mixed emotions. For my first members' business debate, I had hoped to speak about an issue of less importance and to be a touch more light-hearted. Unfortunately, that is not the case, but I am pleased that so many members from different parties are present.
I particularly welcome the people from Clydeside Action on Asbestos and Frank Maguire from Thompsons Solicitors who are in the public gallery to watch the debate. Today has been a busy day for everyone who is involved in the asbestos-related campaigns, and I hope that a positive outcome for sufferers of pleural plaques can be found soon.
I lodged my motion for two reasons. The first is to condemn the recent decision by the House of Lords to overturn the compensation that has been available to people with pleural plaques. The other is to show support to those with asbestos-related diseases, such as pleural plaques, as well as to organisations such as Clydeside Action on Asbestos, which campaigns on their behalf.
Pleural plaques are a scarring of the lung tissue. They are an indicator that exposure to asbestos has occurred in the past. A person who suffers from pleural plaques will probably require regular check-ups and chest scans throughout their lives. Although the problem might not always affect someone's lung function, it is recognised as damage that has been done to their body. The main concern of those with pleural plaques is that it highlights the fact that they have inhaled asbestos fibres and that they might go on to develop a more debilitating or even fatal asbestos-related disease, such as asbestosis or the cancer mesothelioma. The House of Lords decision said that the condition of pleural plaques does not lead to other asbestos-related illnesses. However, I am sure that the House of Lords has been wrong before.
Those with pleural plaques obviously suffer a great deal of stress and anxiety, which is often heightened by their knowledge of former workmates and family members who have died from various asbestos-related illnesses. Each year in the United Kingdom, more than 3,000 people die because of an asbestos-related disease, and the number is predicted to rise to 10,000 by 2020.
For the past 30 years or so, people with pleural plaques have been able to claim compensation from the employers who exposed them to asbestos. In many cases where the employers are no longer in business, it is those companies' insurance firms that are taken to court for compensation claims. However, that process tends to be neither simple nor straightforward. It can take many months or even years before a settlement is made.
It is not only those who have worked in shipyards who have been affected by asbestos illnesses. People who have worked in construction or many other sectors of the economy were also exposed to asbestos, often recklessly, by their employers. They knew of the dangers of asbestos, but either did not inform their workers of the danger or did not provide adequate protection for them. Furthermore, it is not just the individuals who have worked with asbestos who have contracted asbestos-related diseases such as pleural plaques. Often, their families have come into contact with asbestos fibres, and they, too, have developed such conditions. Clydeside Action on Asbestos has numerous cases of wives and children of workers, who would shake the asbestos dust from their husbands' or fathers' overalls prior to washing them. They later developed asbestos-related diseases themselves.
Until recently, those with pleural plaques had the right to sue their former employers for compensation. That right was not given automatically, however. Each case had to be heard in court and the employers' liability in exposing their workers to asbestos had to be proven before any compensation was granted. That would take time, especially considering that the symptoms of asbestos-related diseases can take many years to develop—often 30, 40 or more years.
The decision by the law lords on 17 October now stops that. There was a question whether the ruling would apply in Scotland, but the ruling by Lord Uist on 23 October followed the law lords ruling to the letter. That decision contradicts natural justice. It allows negligent employers to get away with poisoning their workers. It also contradicts a statement by a leading judge in a previous appeal case, who stated that pleural plaques are evidence of an injury to someone, and that such damage—even though it is internal—should not be treated any differently in law from external damage to the body, for which compensation is normally applicable.
Pleural plaques are recognised by medical experts as a sign of irreversible damage to the lining of the lung, caused by a history of exposure to asbestos, which carries with it an increased risk of malignant disease, such as the deadly cancer mesothelioma. Some studies suggest that someone with pleural plaques is 100 times more likely than the general population to develop a fatal asbestos illness. That includes mesothelioma, a cancer primarily of the lining of the lung, which often results in death within 14 months of diagnosis.
Not allowing someone to bring an earlier case for compensation for pleural plaques means that many people with asbestos-related diseases, including mesothelioma, will never see the end of their compensation case. By contrast, allowing them to bring an earlier case on pleural plaques would provide the background if someone was unfortunate enough to develop a further asbestos-related disease, and that would speed up the court process. That is a major reason for allowing those with pleural plaques to retain their right to seek compensation from their former employers.
I offer my support to Clydeside Action on Asbestos and the Clydebank Asbestos Group for their role in campaigning not only for people with pleural plaques but for all those with asbestos-related illnesses. They cover the whole of Scotland and have clients in the traditional shipbuilding communities of Greenock, Port Glasgow, Dumbarton and Clydebank, as well as Glasgow. Asbestos-related illnesses do not affect people only in the west of Scotland; they affect people in the whole of Scotland, although there is a particular concentration in the west, the east coast and the Highlands. Furthermore, asbestos-related illnesses are not exclusive to the shipbuilding industry; they also affect people in the building trade.
I commend the work of those who campaign for justice for sufferers of asbestos-related illnesses. I have met people from Clydeside Action on Asbestos on a number of occasions. I urge anyone who has been diagnosed with an asbestos-related disease to contact the group for advice and assistance.
My motion notes that a draft bill has been presented to the Cabinet Secretary for Justice seeking a Scottish solution to the matter. I know that Clydeside Action on Asbestos and Frank Maguire met the cabinet secretary today and I hope that a way forward can be found as soon as possible to help those with pleural plaques.
Some people might think that this is a health matter, and in some ways it is. Others might regard it as a legal issue, and there are legal aspects to it. However, it is fundamentally a moral issue of allowing recompense to those who have been wronged. I therefore urge the cabinet secretary to ensure that the issue is given the importance that it deserves, which I believe has been the case until now, and to lodge a bill in the near future. In my discussions with Clydeside Action on Asbestos, I said that I would lodge a member's bill if necessary. However, I am sure that a Government bill would make speedier progress through the Parliament.
There is consensus on this matter throughout the chamber. I look forward to justice being reinstated for victims of pleural plaques.
I ask members to make speeches of no more than four minutes, given the number of members who wish to speak.
I congratulate Stuart McMillan on securing the debate. In recent years, the work that has been done by the Scottish campaign groups—not just Clydeside Action on Asbestos, to which the motion refers, but Clydebank Asbestos Group and Asbestos Action Tayside—the Scottish Trades Union Congress and its affiliates, including GMB and Unite, which has played a particularly important role in relation to pleural plaques, has helped us address injustice here in Scotland through legislation and new court procedures. However, their work in Scotland goes beyond that—it has also been the stimulus for action by the United Kingdom Parliament and it has been an inspiration to similar groups around the world. It has shown how determined efforts and concerted action can deliver meaningful results.
We have been greatly assisted by Frank Maguire of Thompsons Solicitors and his associates, whose expertise comes from their work on behalf of hundreds of asbestos victims. Tens of members, including Duncan McNeil, Hugh Henry, Pauline McNeill, Cathy Jamieson, Bill Butler and Bill Aitken, have played prominent roles in ensuring that the issue has been taken forward. I also include members who have now become ministers, such as Shona Robison and Stewart Stevenson. I am glad, too, that our numbers have been swelled by newly elected members such as Stuart McMillan, John Park, David Whitton, Bill Kidd and others who are keen to ensure that the work that has been done so far is progressed.
At the briefing earlier, Jimmy Cloughley of Clydebank Asbestos Group said that asbestos campaigners are becoming well known around here for coming back and arguing that Parliament should correct injustices in the courts. They keep coming back to Parliament because the insurance industry is constantly looking for new legal loopholes that allow it to reduce its liability to victims. The latest judgment from the House of Lords follows legal manoeuvring from employers and insurers aimed at preventing victims from getting compensation.
It dismays me that asbestos campaigners keep having to come back. Men and women throughout Scotland have contracted asbestos-related diseases solely through the negligence of their employers. There is a simple principle involved: if an employer's negligence contributes to harming their employees, the employees should be compensated. In this instance, the insurers' argument is that people who contracted calcified pleural plaques, which is a condition that can arise only from exposure to asbestos fibres in their employment, have not suffered injury—never mind the fact that pleural plaques in many instances are the first indication of a life-threatening asbestos-related disease, such as asbestosis or mesothelioma, and that pleural plaques have physical symptoms such as severe breathlessness and physical incapacity, which destroy people's lives. Never mind the mental stress that comes with finding that, within one's body, there are deadly fibres that have already done significant damage and which could, in time, destroy one's lungs and lead to an acutely painful death. The idea that employers can claim that they have no liability towards people with pleural plaques is profoundly unreasonable.
However, that is the territory on which the insurers chose to fight through the courts. There, they can rely on technicalities and precedents. As legislators, we have—of course—to take those things into account, but as parliamentarians we have also to consider the justice or otherwise of the matter and take into account the views of the wider public. On that basis, there is no doubt about what is the correct course of action. There is an injustice that Parliament can and should put right.
The campaigners who today met the Cabinet Secretary for Justice reported to us that he is sympathetic to their case and has promised to let them know within a month whether he will introduce legislation that will reverse the effect of the House of Lords ruling. I hope that he will come back with a firm commitment to do so: that would be the quickest and most effective way to ensure that pleural plaques sufferers continue to get their compensation.
I was fortunate, in the previous session, in that the then Minister for Justice took over my member's bill, introduced the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, and ensured its rapid passage, which had unanimous support in Parliament. I hope that, in the present instance, no middle man will be required and that ministers will pick up the objectives of the campaigners and introduce a bill that delivers justice so that pleural plaques sufferers continue to get their compensation. That is the right answer to the question that they posed to us.
I, too, congratulate Stuart McMillan on obtaining the debate. However, it gives some of us a sense of déjà vu because Parliament has debated the matter on a number of occasions. The debate is predicated on the appalling injustices that have been inflicted on people who suffer from asbestos-related diseases. It is a disgrace that so many of those people were left hanging and waiting for settlements until such time as Parliament was forced to legislate. We were forced to legislate because, despite the best efforts of people such as Pauline McNeill, Des McNulty and me, the changes that we introduced were not sufficient to cope with the issues.
The insurance industry, in which I was employed for many years, comes out of the matter badly. The delays and stalling tactics to which Des McNulty referred have been disgraceful. To some extent, the industry brought upon itself the issue that we face today. For many years, liability was not denied and claims were settled. It was only when claims, which used to be settled for nominal amounts, began to result in higher damages and, in particular, in much higher legal fees, that the industry had to test the legal position. The result, finally, was the House of Lords judgment that was delivered recently.
We have to consider where we go from here. We must proceed on the basis of much fuller information, and any decisions that Parliament makes must be made following a clear, cool and forensic examination of the facts. I do not have the legal knowledge to debate a House of Lords judgment, and I am sure that no one else here has, but it appears to me that two considerations arise. First, in the pursuit of damages, do the pursuers have to demonstrate that the condition leads to other more serious conditions? That can probably be answered with a "Yes." It appears to be necessary to demonstrate that there is a likelihood that the condition will lead to asbestosis or mesothelioma. I note that the solicitor who is acting on behalf of Clydeside Action on Asbestos will obtain that information for us. That will be material when Parliament decides how to proceed.
The second consideration is that the courts should recognise that sufferers experience anxiety, worry and concern that the condition might lead to something more sinister and should award damages. That was the position prior to the House of Lords judgment.
Those matters will have to be considered, but I caution members that what we are suggesting might have far-reaching consequences for the law of reparation and personal injury in Scotland. What happens will depend on the bill that eventually comes before Parliament, so we must be sure of the facts. None of us has anything other than the greatest sympathy for sufferers of asbestos-related injuries, and we have demonstrated that we are prepared to take action when it is necessary. I am sure that we will take action again, but we must have the full facts and information and we must know precisely where we are going with any potential legislation.
I shall await the minister's contribution to the debate with great interest, and we shall see where it leads us in this particularly difficult issue.
I congratulate Stuart McMillan on securing this members' debate on the pleural plaques case. It is timely and appropriate.
Earlier today, following our involvement in the press conference that was organised by Clydeside Action on Asbestos on 17 October, I sponsored, along with Bill Butler and Bill Kidd, a well-attended briefing for MSPs and researchers at which were representatives of Clydeside Action on Asbestos, the other action groups in Clydebank and Tayside, and the trade unions, as well as others with an interest in the issue. We had the benefit of an extremely lucid explanation of the background by the solicitor advocate Frank Maguire, who acts for hundreds of pleural plaques claimants and many people who are afflicted with mesothelioma.
More particularly, we had the benefit of hearing the experiences of two people who suffer from pleural plaques, who described in matter-of-fact terms the effects on them and their families. As John Stewart from Dunfermline told us, he has seen three generations of the same family wiped out by asbestos-related ailments—asbestos-related diseases are like that. As Stuart McMillan mentioned, they often affect close-knit communities where people work in shipyards or families where mothers have been exposed to asbestos fibres through washing overalls for their husbands or sons.
Bill Aitken rightly touched on the fact that there is a genuine legal debate to be had about where the right to damages ends and what its limits are. I recall from my professional career the complexities of those arguments. However, the law should ultimately dispense justice, which is what lies behind tonight's debate.
In pleural plaques cases, there is often no doubt about the responsibility and negligence of the employer—employers have known about the dangers of asbestos for many years. Claims arise because claimants—frequently workers in the shipbuilding or construction industries—were negligently exposed to asbestos fibres. One of the family representatives today told us that he used to strip asbestos off machinery and then blow the remaining dust and fibres away with a blower so that the engines were clean. We could barely imagine anything worse. It is hardly surprising that so many people have ended up with an asbestos-related disease. The toll is horrendous.
There is no doubt either about mesothelioma, which is one of the nastiest industrial diseases ever spawned and is known by families and communities alike to be both terminal and extremely unpleasant. Not surprisingly, people are anxious if they think that they are halfway down the line to getting that horrendous condition—anybody would be anxious. The argument about whether there is a causal link between pleural plaques and other asbestos-related diseases seems a trifle academic. What is certain is that the train of causation goes right back to the negligent exposure to asbestos many years before. Whether it leads to pleural plaques or mesothelioma is a subsidiary argument to the main liability chain of causation.
The House of Lords judgment means that pleural plaques claimants lose two things: first, the interim damages that have been paid in practice for more than twenty years; and secondly, and even more important, the right to sort out liability issues at the start, when they are fit to do so, rather than when a more serious illness strikes.
I hope that the minister will feel able to put on the parliamentary record tonight his acknowledgement of the cross-party—I think all-party—nature of the call for legislation to reverse the judgment. I hope also that he will put on record his sympathy with the cause of those who have been diagnosed with pleural plaques. Finally, I hope that he will be able to say tonight, or in the near future if necessary, that he is prepared, in principle, to change the law to restore the position as it has been understood for more than 20 years. I recognise that he must have advice from his officials on unintended wider consequences and on getting legislation right, but we want to hear that he will act on what is widely perceived to be an injustice and do what the Scottish Parliament was set up to do—pass good and just laws that right injustices in Scotland.
I renew the request to the cabinet secretary, through the minister, to meet me and other interested MSPs, as Alex Salmond promised at First Minister's question time. I impress on the minister the need for an immediate or early announcement that will guide claimants, employers and the relevant insurance companies on their approach to this difficult matter.
We all very much appreciate the opportunity to debate the judgment, for which I thank Stuart McMillan. The House of Lords judgment on 17 October that put an end to compensation that has been provided for pleural plaques for the past 30 years or more is bizarre, because we know what pleural plaques are and how people get them—they are caused by asbestos. Pleural plaques are clearly an industrial injury.
In my former life—in fact, it is not a former life, because I still own the business—I dealt with heavy and dangerous materials. In my business, we take all the precautions that we can. The duty of care is a big help when we assess the risks that not only my employees but my family are subject to at work.
We do our utmost to have a safe working environment. We have always been like that, and I hope that we always will be. God forbid that something might happen in my business while I speak here tonight, but I pay insurance to deal with that. It does not make me feel any better, but I expect my insurance company to pick up the bill for anything untoward that happens.
One problem with any illness or injury is its impact on others. The diagnosis of asbestos-related illnesses has an impact not only on the individual but on the family. Some people feel that a ticking time bomb is in them. How does that affect them and their families? They experience anxiety and depression, which can sometimes slide into a host of other illnesses.
We cannot quantify the impact that the judgment is likely to have across the board. Members can see the result of not taking care of the issue at an early stage, and how it impacts on the health service. If we pay a little now, we can save an awful lot later.
By and large, the people who are affected are very ordinary. They want us to support them. They feel, and I believe, that the system has let them down, but the Parliament can sort that out. I hope that the minister will consider what members have said tonight. We have heard what Stuart McMillan said. The minister might not give a commitment tonight—although if he does that will be fine—but I hope that he will go away and think about the issue with a view to introducing a bill, which would be received extremely well and passed unanimously.
I commend Stuart McMillan on giving Parliament an opportunity to discuss a tragic and serious matter. It is profoundly disappointing that, so soon after taking decisive action in the previous session to address the injustice for victims of mesothelioma and their families, we must again discuss an injustice that concerns an asbestos-related disease or injury—however we want to describe it.
Stuart McMillan and Des McNulty described how pleural plaques come about, and they eloquently described in detail their consequences. There can be no doubt whatever about where pleural plaques originate and who is responsible for them. The Parliament is confronted with the consequences of a House of Lords decision and must now consider what it should do, if it can do anything. I argue that we can do something.
I know the dilemma that the minister faces and the type of advice that he is being offered, because I have been there. However, the complexities that are involved ultimately require political resolution and determination. The ruling that has been made cannot be justified in any way, shape or form. As a Parliament, we must ask what we can do, because sufferers of asbestosis, including pleural plaques, have been denied the chance to get justice.
I give credit to the campaigning groups that have, with the victims, been responsible for keeping the issue at the forefront of our minds. Those people have been ably supported by individuals and legal firms that have been mentioned. However, I want to pay tribute to the trade unions in particular, which have taken their responsibilities extremely seriously. Not only have the GMB and the sections of Unite echoed and articulated support for the victims, they have invested substantial amounts of money to try to get justice for victims at the House of Lords. The exercise has not been cheap—it has cost £1 million or more—but it has been worth every penny, because it has attempted to address a profound wrong. The trade unions' work is to be commended, although their best efforts have, unfortunately, failed. It now falls to us to consider what needs to be done.
Whether the minister can say anything tonight about what will be done is neither here nor there, but he can do something, and something should be done. I know that the team that is sitting in the Parliament to support the minister consists of very able officials who supported Cathy Jamieson and me in our deliberations on the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill. They know the law and the issues that are involved, and they care about the subject and the people who have been victims. I hope that I am not embarrassing them. The minister is well and ably supported.
The time is right for politicians in the Parliament to step up to the mark. We should do something. We should say clearly on the record that we will do something and that members will unite across party groups, just as they did in the previous session when there was no political dissent or division on the issue, to ensure that people are not again left to suffer alone. We should make it clear that we are behind them and that we will rectify a wrong. I hope that we will do something quickly.
I rise to support the motion in the name of my Justice Committee colleague Stuart McMillan. I congratulate him on securing the debate, which allows members to discuss a serious issue of fundamental importance to the rights of hundreds of working people and their families.
As members have said, the issue arises from the disturbing judgment relating to pleural plaques that the House of Lords reached on 17 October. Their lordships made a scandalous and unjust decision that, in effect, found on behalf of employers who have negligently or recklessly caused their workforces to be exposed to asbestos in the pursuit of profit and against the innocent victims of those employers' recklessness and neglect.
Who are those victims? They are our fellow citizens, who spent their working lives in the shipbuilding, construction and fishing industries. They are the Rosyth dockyard worker who was exposed to asbestos, with no protection of any kind, over a period of two and a half years in the late 1950s. They are the retired pipe fitter from Leith who was never told of the dangers and who was forced into early retirement at the age of 53. Those are the victims: real people; real lives affected; real lives blighted.
This nonsensical ruling, which was based on a piece of semantic trickery over the definition of the term "injury", must not go unchallenged. We all know that calcified pleural plaques are an industrial injury—a disease visited upon workers by negligent, reckless employers. As many of us heard at the briefing in Parliament this afternoon, the decision has left 214 people whose cases are in court and more than 400 others whose cases have still to be heard in a judicial no-man's-land. At any time, insurers acting on behalf of employers could move to have those cases thrown out by the Court of Session. There is no doubt that such a move, at the moment, would be successful.
We can prevent such a further injustice from being visited upon the innocent victims and their families, who have already had to endure so much. We can do that by acting together as the Parliament of Scotland. As Hugh Henry and others have mentioned, the previous Executive found space in its legislative programme to pass the bill that was enacted as the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007. That bill rightly attracted the unanimous support of the Parliament. That showed that, here at Holyrood, we can act across party boundaries when we know that a wrong needs to be righted. With this most recent development, we must act once again as a united legislature to remedy an injustice. We must restore our fellow citizens' right to compensation in respect of pleural plaques and restore their ability to reserve the right—this is important—to make a further claim for compensation if, tragically, they go on to develop other fatal asbestos-related conditions.
Will the minister confirm tonight whether the Government will find time in its legislative programme to adopt the bill that has been prepared for Clydeside Action on Asbestos by Thompsons? The bill was sent to the Cabinet Secretary for Justice on 17 October. As the minister will know, speed is of the essence in this matter. As is clear from tonight's debate—and will become increasingly clear—there is unanimous support across the chamber for such a measure. Members of all parties and none are united on the issue as are, with the exception of some employers and insurers, the people of Scotland. I hope that the minister in his summation can give us that assurance. I await that summation with interest.
I thank Stuart McMillan for securing the debate. The fact that we can stand here and, in the spirit of natural justice, stand alongside those who are victims of pleural plaques and other asbestos illnesses shows that this Parliament is a Parliament of the people. I am happy to stand here to speak up for those many victims, but I am saddened that it has proven necessary for me to do so.
Sadness is experienced by many people in communities across Scotland who, over the years and up to the present day, have lost relatives and friends to the various asbestos diseases. Pleural plaques, which can cause breathlessness and various other health problems, may or may not lead to more severe life-threatening illnesses such as pleural thickening, asbestosis or mesothelioma. However, pleural plaques exist only in the lungs of people who have worked with asbestos or been exposed to asbestos as a result of being related to such workers. They do not exist in any other form. They exist only in people who have been exposed to asbestos. On that basis, we can say that those employers who exposed their workers to asbestos are liable. If those employers had a liability policy with an insurance company, that insurance company will have to pay up.
Today I met representatives of the insurance companies. At a very civilised meeting, they impressed on my colleagues and me that medical evidence suggests that pleural plaques have no impact on the lung capacity or general health of the affected person. I am not a medic, but the suggestion that pleural plaques, which occur only as a result of exposure to asbestos and are scars or calcified areas on the lungs, are not injuries or injurious is insulting to those who are affected. Calcification of living tissue by exposure to asbestos is an unnatural injury to the human body and, by extension, an injury to the mind and spirit of the victim. The anxiety that victims and their relations feel is real. In my opinion, they are due whatever compensation a payment from employers or insurers will achieve.
Mr Kidd said that he met the insurers earlier today. I do not know whether he received a copy of the briefing from the Association of British Insurers, which is a disgraceful piece of paper. It has headings such as
"Pleural plaques do not impair health … Pleural plaques do not lead to any other disease"
and
"Pleural plaques are not compensatable".
If I were a member of the association's corporate communications team, I would be embarrassed to put out such a briefing.
I thank David Whitton for highlighting an issue that needed to be raised.
The lung's reaction to asbestos is calcification, which occurs only when asbestos is present in the lung. Asbestos is a killer. To say that the anxiety that victims feel is unnecessary, as there is no suggestion of incapacity or of a further serious condition, is again insulting to the men and women who suffer those fears and worries. They helped to build this country in the 20th century. It is for us to ensure that 21st century justice sees the resumption of compensation payments to pleural plaques claimants.
I am prepared to accept a motion without notice from Robert Brown to extend the debate by up to 15 minutes.
Motion moved,
That, under Rule 8.14.3, the debate be extended until 6.02 pm.—[Robert Brown.]
Motion agreed to.
I thank Stuart McMillan for bringing this debate to the Parliament this evening. I also thank all those involved in the campaign against the House of Lords decision.
The appeal to the law lords was from Amicus and Thompsons Solicitors. I declare an interest, as a member of Amicus Unite. Deloitte & Touche has estimated that the House of Lords judgment of 17 October on pleural plaques would save UK insurance companies as much as £1.4 billion. I say to David Whitton that it is no wonder that they are so keen to brief on the decision. However, that saving will come at the expense of people who are struggling to cope with the devastating news that they have a condition that is far more worrying than breathlessness, pain or other immediate symptoms, as it is strongly associated with an increased risk of developing fatal conditions such as mesothelioma and asbestosis. Unless people go on to develop those illnesses or related conditions as a result of exposure to asbestos, they will no longer be compensated.
The House of Lords decision overturns 20 years of practice and increases the stress and anxiety of claimants and their families, as they wait for asbestosis or mesothelioma. I know about the stress that claimants and their families feel, because I am married to someone who suffers from pleural plaques. I know what it is like when someone is constantly worried about how the condition will develop. The decision cannot be allowed to proceed—we need to do something about it.
Whatever the scientific argument around pleural plaques may be—it has been suggested that they may be benign—they are almost certainly an indication that a person is much more likely suddenly to find themselves with a life-threatening illness and with a life expectancy that is measured in months, rather than years. Perversely, the House of Lords decision removes from them any realistic opportunity to claim money while they are still alive, because delayed diagnosis and legal process conspire to ensure that court cases last longer than people.
If the insurance companies will not accept that people with pleural plaques should be compensated for the genuine and irreversible injury that asbestos has caused, there is an urgent need for legislation to establish a right to damages for claimants in that situation. I look forward to the day when workers in Scotland and elsewhere who contract illness due to their work are treated with respect and compensated appropriately.
I thank Stuart McMillan for giving us the opportunity to debate this issue. I was pleased to sign his motion, and the motion that was lodged by my colleague Pauline McNeill.
There is no doubt that the law lords' determination, on 17 October, to support asbestos companies and their insurers against their employees is an affront to justice. The legacy that asbestos has left is not a historical one—it is important that we bear in mind that asbestos is responsible for more work-related deaths in this country than any other cause. Mesothelioma, the cancer that is induced by asbestos exposure, is the third fastest-increasing cancer in Britain, and the figure is not expected to peak until between 2010 and 2015. Legal battles to expose the impact of asbestos on its victims and their families, and to ensure that justice is done, have taken place over decades. It seems that they are set to continue, given the determination of the employers and the insurance companies to unpick the rights that asbestos victims and their families currently have.
There have been some successes—not least here in the Scottish Parliament—that were mentioned earlier. It is worth saying yet again that excellent cross-party work has been done by members of the Parliament. That includes our late colleague Margaret Ewing—not only in this Parliament, but in the Westminster Parliament; Mary Scanlon, who was here earlier; Stewart Stevenson; Bill Aitken; the members of the previous Justice 1 Committee, who did a sterling job under the convenership of my colleague Pauline McNeill; and Hugh Henry, in his previous role as Deputy Minister for Justice. Last, but not least, I am sure that members will acknowledge the sterling and consistent work that has been done with the unions and the campaigners by Des McNulty. We can be satisfied that the election did not diminish our number—and there are new recruits, as demonstrated by this campaign.
I am delighted that the commitment that has been shown by the members of this Parliament has made a real difference to the victims and their families in shipbuilding communities on the Clyde, not least in my constituency of Greenock and Inverclyde. Sadly, it is time yet again for the Scottish Parliament, and ministers, to stand up for victims of asbestos-related disease. Ministers, as we know—and as we have heard from Hugh Henry—have the power to act. The emergency powers procedure was created for situations such as this, in which a bill must be passed swiftly to close a legal loophole or right a wrong that has been created by a court judgment. That is precisely the set of circumstances that we face.
I urge the minister to take the necessary first step, and introduce the ready-made bill that he has in his possession. He has the support of the law, of Parliament, of precedent, and support from all members in the chamber this evening. The interests of justice are in favour of the minister taking firm action, and taking it now.
I offer sincere thanks to Stuart McMillan for securing the debate, and for setting out very well the technical and emotive issues that are involved.
I have lodged a similar motion in similar terms, in order to set out my own and the Labour Party's conviction in supporting Clydeside Action on Asbestos and the Clydebank Asbestos Group for their work. It seems that their work is never done, which is sad.
The House of Lords ruling of 17 October 2007 is of serious concern to us all. The reversal of a principle that has been established for almost three decades—that cases of pleural plaques, once diagnosed and proved to have been caused by neglect, are actionable—is hard to understand and is certainly not acceptable. The no injury, no rights decision is wrong. Sufferers are being asked to accept that, all of a sudden, doctors agree that the condition has no health effects, following a ruling in the House of Lords—they are supposed to accept that ruling as medical evidence.
As other members have said, the Parliament has been a hive of activity today, as members have discussed the issue and how we can respond. Among those people who made their case to MSPs were, as ever, Phyllis Craig and Harry McCluskey. I was struck by the comments of members of the 716 branch of the Transport and General Workers Union, which is now part of Unite, who said that almost 50 per cent of the 700 members who made up that branch have died of a related disease. Doctors might tell people who have been diagnosed with pleural plaques not to worry because it will not necessarily develop into mesothelioma, but one member of that branch told us that he had just buried a colleague who had been told the same thing.
As many members have said, calcified pleural plaques is a condition that can be contracted only through exposure to asbestos. We cannot let off the hook employers whose actions have resulted in workers being exposed to serious health risks in the line of duty. In many cases, we are talking about the poorest people in our communities, whose working lives have been cut short and whose quality of life has been ruined as a result of worrying about having worked in a shipyard or in one of the other heavy industries throughout Scotland in which they could have contracted such an industrial injury.
How can it be right that cases involving an industrial disease for which compensation could be awarded by Scottish and other courts for more than 25 years have now been ruled not to be actionable? The House of Lords has completely reversed rulings that have been made for more than 25 years, which have affected numerous people.
We have been told that pleural plaques have no health effect, but today MSPs have listened to people who have explained that that is simply not true. Some people with pleural plaques might suffer from breathlessness or hyperventilation, not to mention the psychiatric effect of the worrying and depression that are caused by knowing that the disease could lead to something far worse. No health effect? I do not think so.
We have taken action before. Many members, including Hugh Henry, Des McNulty, Johann Lamont and Cathy Jamieson, have taken action when it was clear that it was necessary. There is a clear case for ministers to say that they will act.
As other members have said, the insurance industry has set out many reasons why action should not be taken, but I want to put the case for taking action. We are not talking only about an emotive issue—there are some practical issues that must be considered. Cases involving pleural plaques were actionable for more than 25 years, so why are they not actionable now? People who have pleural plaques have a physical injury—it is an industrial injury that is caused by exposure to asbestos. As we have heard, there are various degrees of illness. There are already circumstances in which the law compensates people who suffer from worry, anxiety and depression; it compensates people for what others say has hurt them, so why will it not offer compensation in cases of pleural plaques?
Society owes the victims of pleural plaques and the Parliament owes it to them to act, so I hope that the minister will say something positive.
I am indebted to Stuart McMillan for lodging a motion on the House of Lords ruling on pleural plaques. The fact that members of all parties have stayed on for the debate in greater numbers than is often the case for members' business debates speaks volumes about the concern that exists across Scotland on the issue since the House of Lords ruling was issued on 17 October.
I welcome this early opportunity to hear members' views. We have heard from many members who have campaigned on behalf of people who have suffered from exposure to asbestos, and I pay tribute to the efforts that Des McNulty, Duncan McNeil, Pauline McNeill and Stewart Stevenson, among many others, have made over the years. I also thank the members who have participated in this evening's debate.
I assure members that the Scottish Government is acutely aware of concerns about the judgment, which members have eloquently and passionately expressed on behalf of their constituents. There is no doubt that the history of Scottish industry is littered with cases of negligence. Campaigns have had to be waged decade after decade, while the law followed on far too late in far too many cases. That has been the sad history of industrial injury in Scotland.
I pay tribute to Clydeside Action on Asbestos, which has been to the fore and without which I doubt whether we would have seen the substantial progress on the issue, to which Hugh Henry and others alluded, that was made in the previous parliamentary session. I also pay tribute to the work of Hugh Henry and Cathy Jamieson when they occupied this particular piece of ministerial turf.
We fully understand that a person who has pleural plaques has been exposed to asbestos. I have a copy of the judgment that has caused the difficulties. Paragraph 84, which is part of Lord Rodger of Earlsferry's opinion, says:
"The asbestos fibres cannot be removed from the claimants' lungs."
Cathy Peattie spoke emotionally about her husband, who has pleural plaques, and Gil Paterson talked about the families of those who have pleural plaques. What is a family member supposed to think about a son, daughter, husband or wife whose lungs have been scarred by asbestos? Are they supposed to think, "That's okay, then. Let's forget about it," or will they worry for the rest of their lives that the pleural plaques will become mesothelioma or carcinoma? They will worry, and the worry will not diminish or fade away; it will remain, decade after decade. As Stuart McMillan said, the sufferer will have to make endless visits to their general practitioner for check-ups and scans. The worry will never go away; it will constantly be there.
When the judgment came out, I took the step of asking the chief medical officer for Scotland, Harry Burns, for his opinion about the degree to which those who have pleural plaques may be predisposed to go on to suffer from mesothelioma or other conditions. In relation to the general argument, rather than the particular individuals who pursued the case in the House of Lords, he said that pleural plaques associated with exposure to asbestos signify greatly increased lifetime risk of about ninefold of developing mesothelioma, and a small but significantly increased risk of developing bronchial carcinoma of about 1.4-fold. He also said that the plaques indicate that the appellants had been exposed to asbestos, but that he interpreted the decision to mean that, until they develop symptoms, they will not be eligible for damages.
We received a briefing from Mr Maguire, who has more experience than anyone of dealing with clients who have various asbestos-related conditions. He points out that the mean time for survival for those who suffer from mesothelioma is 14 months.
I think that it was Mr Brown or Mr Aitken who pointed out that it is the habitual practice of at least some insurance companies to delay the settlement of claims. Few serious claims are settled within 14 months. If someone with pleural plaques goes on to suffer from mesothelioma, it is unlikely that there will be a settlement before they die.
I share the concerns that members have expressed and I want to leave members under no misapprehension: the Scottish Government treats this issue with the utmost seriousness. As has been alluded to, I believe that this afternoon the Cabinet Secretary for Justice met Clydeside Action on Asbestos and Mr Maguire. I had hoped to attend that meeting, had I not had to attend a much-postponed meeting with the Cabinet Secretary for Health and Wellbeing about a hospital in my constituency that is facing closure. I apologise for not being able to attend the meeting to hear what was said at first hand. However, as I said, the Cabinet Secretary for Justice attended the meeting and I hope that we will be able to move as quickly as possible to consider what steps should be taken.
Can the minister elaborate on the likely timescale for action? We are talking about a matter of some urgency, as members have said.
You are in your final minute, Mr Ewing.
Thank you, Presiding Officer.
We are considering the bill to which Mr McNeil referred, which has been sent to the cabinet secretary. We will make our intentions known when we have had time to reflect on this debate and to consider in full the House of Lords judgment, which extends to 105 paragraphs. I have read parts of the judgment and think that the argument is not entirely without internal contradictions. It would be interesting to have an opportunity to study the judgment in more detail, as we need to do.
I read with some disappointment Bridget Prentice's response to a written question lodged by Jim Sheridan in the House of Commons. She said that the UK Government has
"decided that it would not be appropriate to legislate on the issue."—[Official Report, House of Commons, 29 October 2007; Vol 465, c 798W.]
However, as members pointed out, we are the Scottish Parliament—Scotland is no longer the only country in the world that has her own legal system but no legislature. As Hugh Henry argued, it is open to us to legislate on the issue. It is open to us to seek a political solution and to act.
I very much hope that after the Cabinet has had the opportunity to receive representations and, if appropriate, consider the issue, the cabinet secretary will return to the Parliament, having giving due consideration to all factors, and take appropriate action to address the grievance that has been expressed so clearly by so many members from all parties.
Meeting closed at 18:02.